In re PELL'S TRUST. 1 *292 ] among them than their respective parents would have been entitled to if living. One of the testator's sons who survived him died in the lifetime of the widow, leaving a child, who afterwards also died in the lifetime of the widow: Held, by the Lord Justice TURNER, affirming the decision of the Vice-Chancellor STUART, that the child took a vested interest, and that her representative was entitled to a share of the fund. THIS was an appeal from a decision of Vice-Chancellor STUart, on the construction of the will of Thomas Pell (1). The testator by his will dated the 18th of December, 1836, gave the income of his residuary personal estate to his wife for her life, and after her death he gave the capital "unto, between and amongst my seven children, Elizabeth now the wife of John Bradshaw, John Pell, Mary now the wife of Francis Kilburn, Ann now the wife of George Mobbs, Samuel Pell, Sarah now the wife of Robert Frisby, and George Pell, or such of them as shall be living at the decease of my said wife, and the issue of such of them as shall be then dead leaving issue, share and share alike, but such issue respectively not to have or be entitled unto a larger share or proportion of such monies. amongst them than their parent or respective parents would have been entitled to if living." The will contained the following advancement clause: "And I also empower my said trustees, if occasion shall require, to pay and apply any part or parts not exceeding altogether one-half of the capital of the vested or presumptive share or shares of any one or more of the issue of my said deceased children of and in the monies aforesaid during their minority or respective minorities for his, her or their respective advancement in the world." The testator died in January, 1837, leaving his wife and the seven children named in his will surviving. John Pell died in May, 1840, leaving an infant daughter, Mary Norman Pell, who died an infant on the 15th of July, 1840. The testator's widow died in 1859, and the question now was, whether the infant daughter of John Pell had acquired an indefeasibly vested interest, so as to entitle her personal representative to participate in the fund. The VICE-CHANCELLOR decided that she had, and the surviving children of the testator appealed. Mr. Boys for the appellants referred to Bennett v. Merriman (2), Macgregor v. Macgregor (3), Penny v. Clarke (4), In re Kirkman's Trust (5), Berkeley v. Swinburne (6). Mr. Peck, for the representative of the deceased child John (1) 3 Giff. 152. (2) 63 R. R. 110 (6 Beav. 360). 425). (5) 121 R. R. 231 (3 De G. & J. 558). (6) 80 R. R. 64 (16 Sim. 275). Pell, referred to Burker v. Barker (1), Lyon v. Coward (2), In re Wildman's Trust (3), Bellamy v. Hill (4), *Hodgson v. Smithson (5), Harcourt v. Harcourt (6), and Smith v. Palmer (7). In re PELL'S TRUST. [ *293 ] Mr. Boys, in reply. Judgment reserved. THE LORD JUSTICE TURNER, after stating the facts of the case, proceeded as follows: Gifts of this description are, I think, as I intimated in Penny v. Clarke, to be considered as gifts to an entire body composed of two separate classes,-the children who shall be living, and the issue of those who shall be dead, and it does not seem to me to follow that, because there is a contingency as to one of the classes, there must be a contingency as to the other also. On the contrary, the introduction of the words of contingency in the one case, and the absence of them in the other, tends, I think, to the opposite conclusion, that contingency in both cases was not intended. Suppose the gift had been confined to the latter class, the issue of the deceased children, there would, I apprehend, be no reasonable doubt that the issue of a deceased child living at the death of the child would take a vested interest, and I do not see why the circumstance of other objects, whose interests are contingent, being introduced into the gift, should vary that construction. The observations made by the Vice-Chancellor WooD in the case of In re Wildman's Trust, as to the difference *of the position of the children and of the issue in a case of this description, seem to me well worthy of attention. It is to be observed, too, that the leaning of the Court, especially in cases of residue, is in favour of vesting, and that to construe the interests of the issue to be contingent, might in many cases lead to intestacy. Looking at the case, therefore, without reference to the authorities, my opinion agrees with that of the VICE-CHANCELLOR. The authorities on this question are not in a very satisfactory state. There are the opinions of Sir JAMES WIGRAM, Sir RICHARD KINDERSLEY, the late Sir JAMES PARKER, Sir WILLIAM PAGE WOOD, and the late VICE-CHANCELLOR OF ENGLAND in one case, in favour of the vesting. (1) 90 R. R. 223 (5 De G. & Sm. 753). (2) 74 R. R. 81 (15 Sim. 287). (5) 111 R. R. 120 (21 Beav. 354). 536). (7) 82 R. R. 80 (7 Hare, 225). Aug. 6. [294] In re PELL'S TRUST. [295] 1861. Dec. 10. 1861. Nov. 4, 20. KNIGHT L.JJ. [ 297 ] On the other hand, my learned brother seems uniformly to have entertained a different opinion; and his view is not unsupported by other authorities: I refer particularly to the case before Lord Langdale, and to another case before the late Vice-Chancellor of England which was cited in the argument. In the two latter cases, however, there seems to have been a context in the will affecting the question, and I think, therefore, the weight of the authorities is in favour of the vesting. My learned brother however is not, I believe, satisfied with the VICE-CHANCELLOR'S decision, and the case therefore must rest upon my judgment alone. I observe that this is hardly the first time we have agreed to differ upon the point: see Kirkman's Trust (1). It was attempted in the argument to distinguish this case upon the ground of the reference to presumptive shares in the advancement clause, but I do not think that any distinction can be made upon that ground. The widow being tenant for life, the clause could not be intended to apply during her life. This appeal therefore must be dismissed; but I think, looking at the state of the authorities, without costs. FREEMAN v. PENNINGTON. (3 D. F. & J. 295–296.) [Supplemental order. Obsolete procedure.] BUDD'S CASE (2). IN RE THE ELECTRIC TELEGRAPH COMPANY OF IRELAND. (3 D. F. & J. 297-307; S. C. 31 L. J. Ch. 4; 5 L. T. N. S. 332; 10 W. R. 51.) A solicitor, who was a shareholder in an incorporated Company, knowing it to be in difficulties, transferred his shares to his farm bailiff, a man without property. The transfer purported to be made for 501., but no such sum was ever paid, nor had the transferee ever agreed to pay any sum. The transferor admitted that he had made the transfer to get rid of his liability, and had asked the transferee to take the shares off his hands. He also stated that he had informed the transferee (who had no other advice) that the Company was in difficulties; that the shares were worthless, and that a liability might attach to the ownership. The transferee stated that he had never looked upon himself as owner; that he had always considered that the shares were merely put into his name to serve some purpose of the transferor's, and that he had always understood that he should be indemnified. The Company having been ordered to be wound up, the transferor, as solicitor of the transferee, but without communication with him, made an offer to contribute a sum towards the debts of the Company to (1) 121 R. R. 231 (3 De G. & J. 558). (2) See the note to De Pass's case in 124 R. R. p. 382; and see Lindlar's case [1910] 1 Ch. 312, 79 cscape all further liability. He admitted that this sum was to have come out of his own pocket: Held, affirming the decision of the MASTER OF THE ROLLS, that the transfer must be held to have been merely colourable, and that the transferor was a contributory. THIS was a motion by way of appeal from an order of the MASTER OF THE ROLLS placing the name of Mr. Budd on the list of contributories. The Company was formed in 1852, and completely registered in December of that year. In August, 1853, an Act (16 & 17 Vict. c. cxxiii.) was passed incorporating the Company, but without restricting the liability of the shareholders, and in this Act the Companies Clauses Consolidation Act, 1845, was incorporated. Mr. Budd took at different times shares amounting in all to 1,000, the last being taken by him in March, 1853. By the year 1855, the Company was in difficulties, and on the 30th of April in that year Mr. Budd, who was a solicitor, transferred the shares to John Crocker, his farm bailiff, by a deed which expressed the consideration to be the sum of 50l. It was admitted, however, that no sum in fact passed from Crocker to Mr. Budd, and that Crocker had no property. The transfer was registered in the register of transfers. On the 7th of May, 1856, an order was made for winding up the Company. The official manager placed the name of Crocker on the list of contributories in respect of these shares, and in January, 1857, it was settled upon the list by the Judge in chambers. It having been discovered, however, that Crocker was only Mr. Budd's farm bailiff, inquiries were made as to the circumstances of the transfer, and Mr. Budd was examined on the subject. Mr. Budd admitted in his examination that the transfer was made without any consideration, "the transaction being simply this that I had entertained great fears that the Company was in a very bad condition, and I desired to get rid of my liability, and I applied to Crocker (who was a man who was under obligations to my family, independently of his being my servant) to accept a transfer of my shares. I pointed out to him what I believed to be the condition of the Company, that they would probably break up, and that I wished to get rid of my liability, and would he take that liability off my hands, that is, would he take the shares off my hands. He consented to do so." Mr. Budd then stated the grounds of his belief that the Company was in a bad state, which were, that a report of a very unfavourable character had been issued not long before, and that one of the directors had asked him to lend 2501., as the Company was in difficulties. He further stated, that he had informed Crocker of his belief as to the state of the Company, and told him that BUDD'S CASF. [ *298 ] BUDD'S CASE. [ *299 ] [ *300 ] the shares were worthless and would be of no use to him, and that to the best of his belief he *had explained to Crocker that a liability would attach to the ownership of them. In reply to a question whether if the Company had turned out prosperous he should have expected Crocker to account with him for the dividend and return the shares, he said: "Certainly not, it never entered my head that they could by possibility be of any value, and therefore it never occurred to me to say a word about it." Mr. Budd admitted that he had, after the winding-up order, made an offer signed "Thomas William Budd, attorney for Mr. Crocker," offering a contribution of 600l. towards the debts of the Company, so as to render it unnecessary to carry on the winding-up; that this was done without any communication with Crocker, and that the money was to have come out of his own pocket. He said, in explanation, that he had not felt sure what the result might be if the transfer to Crocker were disputed, and had therefore thought it worth while to offer this sum in order to avoid all questions. The circumstances in which the transfer was made were stated as follows in the evidence given by Crocker: "Mr. Budd told me he had some shares in a Company he wished to place in my name, and he produced a transfer to me of them, which I signed, but I clearly understood he would hold me harmless from all loss in respect of the said shares. He said the transfer was a mere form, and I would never hear anything more about it. I never understood or considered that the shares belonged to me, or that I could sell them or do what I liked with them. I understood the transfer was a mere form for some object of Mr. Budd's; he did not say what, nor did I inquire. I considered the shares were Mr. Budd's, notwithstanding the transfer. I merely took the transfer of the shares to oblige Mr. Budd. If I had been called upon to pay upon them, I should have looked to him to reimburse me, as he was bound in honour to do so. Without Mr. Budd's saying so in so many words, I clearly understood that if any demands were made upon me in respect of the shares he would hold me harmless. I did not consider there was a bonâ fide parting with the shares of Mr. Budd to me. I considered Mr. Budd meant me merely to hold them in my name as a matter of form, to answer some purpose of his; I did not know or inquire what. I never attended any meetings of the Company or acted as a shareholder in any way; I was, at the time of the transfer, farm bailiff to Mr. Budd at a salary of one guinea per week. In signing the transfer I knew very little what I was doing or the effect of the transfer. I did not read the deed, or observe whether it |